Lifetime ban on convicted politicians too harsh, 6-year bar sufficient: Centre in SC

NEW DELHI: The Central government on Wednesday submitted an affidavit in the Supreme Court, opposing a petition seeking a lifetime ban on politicians from contesting elections after being convicted in criminal cases.

The government said that the duration of disqualification falls strictly within the realm of legislative policy. The assertion was made in an affidavit submitted in response to a petition filed by lawyer Ashwini Upadhyaya in 2016, which challenged the constitutional validity of Sections 8 and 9 of the Representation of the People Act, 1951.

“The question whether a life-time ban would be appropriate or not is a question that is solely within the domain of the parliament,” the Centre submitted. By confining the operation of penalty to an appropriate length of time, deterrence was ensured while undue harshness was avoided, it added.

There was, said the Centre, nothing inherently unconstitutional in limiting the effect of penalties by time and it was a settled principle of law that penalties were limited either by time or by quantum.

“It is submitted that issues raised by the petitioner have wide-ranging ramifications and clearly fall within the legislative policy of Parliament and the contours of judicial review would be suitably altered in such regard,” the affidavit said.

The plea in the top court seeks a life ban on convicted politicians aside from the expeditious disposal of criminal cases against MPs and MLAs in the country.

According to Section 8, a person convicted of specified offences faces disqualification for six years following the completion of their jail term. Likewise, Section 9 stipulates that public servants dismissed for corruption or disloyalty to the State shall be barred from eligibility for five years from the date of dismissal.

However, the petitioner argued that such disqualification should be extended to a lifetime ban.

The duration of disqualification is decided by Parliament, taking into account the principles of proportionality and reasonableness. “By confining the operation of the penalty to an appropriate length of time, deterrence is ensured while undue harshness is avoided,” the Centre said.

In its affidavit, the Centre underlined that the apex court had consistently held that the legislative choice over one option or the other couldn’t be questioned in courts over its efficacy or otherwise.

“The disqualifications made under the impugned sections are limited by time as a matter of parliamentary policy and it would not be appropriate to substitute the petitioner’s understanding of the issue and impose a lifetime ban,” it said.

The Centre said as a matter of judicial review, the court could declare the provisions to be unconstitutional, however, the relief sought by the petitioner effectively sought to read “life-long” instead of “six years” in all sub-sections of Section 8 of the Act.

It said lifetime disqualification was the maximum that could be imposed under the provisions and such a discretion was “certainly within the power of Parliament”.

“However, it is one thing to say that a power exists and another to say that it must necessarily be exercised in every case,” the Centre argued.

The affidavit said the impugned laws were “constitutionally sound” and “did not suffer from the vice of excess delegation” aside from being intra-vires the powers of Parliament.

“The prayer of the Petitioner amounts to the re-writing of the statute or directing Parliament to frame a law in a particular manner which is wholly beyond the powers of judicial review. It is trite law that the Courts cannot

direct Parliament to make a law or to legislate in a

particular way,” the government said.

Furthermore, the Central government also emphasised that numerous penal laws impose time-bound restrictions on disqualification. “There is nothing inherently unconstitutional about limiting the impact of penalties to a specific period,” it added.

While imposing any penalty, it said, Parliament considers the principles of proportionality and reasonability as for instance, the entirety of the Bharatiya Nyaya Sanhita, 2023, or penal law provide for imprisonment or fines up to certain limits and the rationale behind it was that the punitive measures would co-relate with the gravity of offence.

There were numerous penal laws that prescribe imposing restrictions on the exercise of rights and freedoms, which in most cases are time-specific, it said.

The affidavit said the petitioner’s reliance on Articles 102 and 191 of the Constitution was totally misplaced. Articles 102 and 191 of the Constitution deals with disqualifications for membership of either house of parliament, legislative assembly or legislative council.

The Centre said Clause (e) of Articles 102 and 191 were enabling provisions that confer on Parliament the power to make laws governing disqualification and it was in exercise of this power that the 1951 Act was enacted.

The Constitution has left the field open to Parliament to enact such further law governing disqualifications as it deems fit. Parliament has power both to determine the grounds for disqualification and the duration of disqualification,” it said.

The Centre said the grounds for disqualification in the articles included holding of an office of profit, unsoundness of mind, insolvency and not being a citizen of India. “It is submitted that these are not permanent disqualifications,” it added.

The apex court on February 10 sought responses of the Centre and the Election Commission on the challenge to constitutional validity of Sections 8 and 9 of Representation of People Act.